Court name
Special Court for Sierra Leone
Case number
SCSL 16 of 2004
Case name

Prosecutor v Alex Tamba Brima & Ors - Brima- Decision on Motion for Exclusion of Prosecution Witness Statements and Stay of Filing of Prosecution Statements
Law report citations
Media neutral citation
[2004] SCSL 167


SPECIAL COURT FOR SIERRA LEONE
JOMO KENYATTA
ROAD • FREETOWN • SIERRA LEONE

PHONE: +1 212 963 9915
Extension: 178 7000 or +39 0831 257000 or +232 22 295995

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295996


THE TRIAL CHAMBER


Before:
Hon. Judge Benjamin Mutanga Itoe, Presiding Judge
Hon. Judge Bankole
Thompson
Hon. Judge Pierre Boutet
Registrar:
Robin Vincent
Date:
2 August 2004
PROSECUTOR
Against
Sam Hinga Norman
Moinina Fofana
Allieu
Kondewa

(Case No.SCSL-04-14-T)


MAJORITY DECISION ON THE PROSECUTION’S APPLICATION
FOR LEAVE TO FILE AN INTERLOCUTORY APPEAL AGAINST THE DECISION ON THE
PROSECUTION’S
REQUEST FOR LEAVE TO AMEND THE INDICTMENT AGAINST SAMUEL
HINGA NORMAN, MOININA FOFANA AND ALLIEU KONDEWA


Office of the Prosecutor:

Defence Counsel for Sam Hinga
Norman
:
Luc Côté
James Johnson

Sam Hinga Norman


Standby Counsel for Sam Hinga Norman:
Bu-Buakei
Jabbi


Defence Counsel for Moinina
Fofana
:


Michiel Pestman


Defence Counsel for Allieu Kondewa
Charles
Margai


THE TRIAL CHAMBER (“Trial Chamber”) of the Special Court
for Sierra Leone (“Special Court”), composed of Hon. Judge Benjamin
Mutanga Itoe, Presiding Judge, Hon. Judge Bankole Thompson and Hon. Judge Pierre
Boutet;
NOTING the Decision on the Prosecution’s Request for
Leave to Amend the Indictment against Samuel Hinga Norman, Moinina Fofana and
Allieu Kondewa, rendered on 20 May 2004 (“Decision”);

SEIZED of the Prosecution’s Application for Leave to File an
Interlocutory Appeal against the Decision on the Prosecution’s
Request for
Leave to Amend the Indictment against Samuel Hinga Norman, Moinina Fofana and
Allieu Kondewa (“Application”)
filed by the Office of the Prosecutor
(“Prosecution”) on 4 June 2004;

NOTING the Joint Response to the Application filed by Defence Counsel
for Moinina Fofana and Allieu Kondewa on 14 June 2004 (“Joint
Response”);[1]

NOTING the Reply to the Joint Response filed by the Prosecution on 18
June 2004 (“Reply”);
[2]

NOTING THE SUBMISSIONS OF THE PARTIES

A. The Prosecution’s Application

  1. Pursuant
    to Rule 73(B) of the Rules of Procedure and Evidence (“Rules”), the
    Prosecution seeks leave to appeal against
    the Decision of this Chamber refusing
    the Prosecution’s Request for Leave to Amend the Indictment Against Samuel
    Hinga Norman,
    Moinina Fofana and Alieu Kondewa on the basis of exceptional
    circumstances and irreparable prejudice.
  2. On
    the issue of exceptional circumstance, the Prosecution submits that the
    different opinions expressed by the judges in the majority
    decision and the
    dissenting opinion amount to exceptional circumstances, as this fact illustrates
    the difficult legal and factual
    issues raised by the Request to Amend the
    Indictment. [3]
  3. The
    Prosecution further submits that it is obliged to prosecute to the “full
    extent of the law”, which it could not do
    if the Decision denying leave to
    amend the indictment was allowed to stand. It argues that the high profile
    nature of gender based
    crimes under international law constitutes another
    exceptional
    circumstance.[4]
  4. The
    Prosecution also states that, as a consequence of the denial Decision, the
    possibility of undermining the objectives of the Special
    Court exists, as the
    Prosecution is unable to establish a complete and accurate historical record of
    the crimes committed during
    the armed conflict in Sierra Leone and cannot
    acknowledge the right of the victims to have crimes committed against them
    characterized
    as gender based
    crimes.[5]
  5. As
    regards irreparable prejudice, the Prosecution submits that although validated
    by the evidence in its possession, the Decision
    causes irreparable prejudice to
    the Prosecution as it precludes the Prosecution from prosecuting sexual violence
    acts committed by
    CDF
    members.[6]
  6. It
    contends further that the denial of the amendment sought also precludes the
    victims from having their crimes characterised as gender
    based crimes and
    impairs the remedies to which they are
    entitled[7], and that
    denying the amendment establishes impunity with respect to gender crimes, as it
    is highly improbable that they will ever
    be prosecuted under domestic
    jurisdiction for such
    crimes.[8]
  7. It
    is also the Prosecution’s submission that an appeal will not create a
    delay of the proceedings, as the next session in the
    CDF-case will start in
    September only, giving the Appeals Chamber sufficient time to decide on this
    matter. If the amendment is granted,
    the Prosecution contends, the Trial Chamber
    is free to order that evidence pertaining to gender based crimes be presented
    towards
    the end of the Prosecution’s case, giving the Defence more than
    six months to prepare the cross examination of Prosecution
    witnesses.[9]
  8. If
    granted leave to appeal, the Prosecution submits that it will argue that the
    Trial Chamber erred on various points. It asserts
    that contrary to the Decision
    by the Trial Chamber, the full investigations did not start two years
    ago,[10] but only in
    November 2002. Information obtained by the Prosecution prior to October 2003
    were only indications of gender based crimes.
    In addition, the Prosecution
    submits that by assuming that the Prosecution had acted without due diligence in
    the conduct of its
    investigations of gender based crimes the Trial Chamber
    erred, as well. According to the Prosecution, obtaining evidence on gender
    based
    crimes necessitates much more time than collecting evidence concerning other
    crimes, especially regarding CDF victims because
    of the popular support for
    CDF.[11]
  9. In
    conclusion, the Prosecution submits that the Trial Chamber misdirected itself as
    to the principle to be applied, when it held that
    “the rules relating to
    the detection and prosecution of these [gender based] offences are the same as
    those governing the other
    war crimes and international humanitarian
    offences”, and agrees with the view expressed by Judge Boutet in his
    Dissenting Opinion
    on the Decision, that the detection of evidence relating to
    gender crimes requires much more time and vigilance than the detection
    of other
    crimes.[12]

B. The
Defence Response

  1. The
    Defence argues that a dissenting opinion does not constitute exceptional
    circumstances, as the practice of appending dissenting
    opinions at international
    tribunals is
    standard.[13] It
    further argues that there is no obligation on the Prosecution to prosecute to
    “the full extent of the law”, and that
    if such an obligation really
    existed, the negotiation of plea agreements would not be possible before
    international criminal
    tribunals.[14]
  2. The
    Defence Counsel for the 2nd and
    3rd Accused submit that an argument that has been
    raised in the original motion cannot amount to irreparable prejudice, since the
    Trial
    Chamber will have weighed the argument in its
    decision.[15] In
    addition, it is the contention of the Defence that as the victims are not a
    party to the case, alleged impairment of victims’
    remedies does not
    constitute “irreparable prejudice to a party”, as required by
    Rule 73(B).[16]
  3. The
    Defence also submits that the Prosecution fails to present evidence in support
    of the distinction between the difficulties encountered
    in investigating alleged
    CDF gender-based crimes and those in RUF and AFRC
    [17], and the Defence
    stresses the fact that the Application for leave to amend the indictment was not
    timely filed, as this should have
    been done in October
    2003.[18]

C. Prosecution’s
Reply

  1. In
    the reply, the Prosecution submits the contrary to the Defence Response,
    dissenting opinions to decisions on leave to amend an
    indictment have never
    happened at the ICTR and ICTY. The dissenting opinion shows the complexity of
    this issue which would benefit
    from a review by the Appeals Chamber.
    [19]
  2. The
    Prosecution stresses that it is indeed obligated to prosecute to the “full
    extent of the law”, as established by decision
    of the ICTY and the
    ICTR[20] and that the
    possibility of plea bargaining does not nullify this obligation, and under
    international criminal law, a plea agreement
    operates only after the
    presentation of an Indictment which properly reflects the totality of the crimes
    allegedly committed by the
    Accused.[21]
  3. Furthermore,
    the Prosecution submits that because of the different tests for the leave to
    amend an indictment and the leave to appeal
    a decision, an argument can be
    raised again if it proves the fulfilment of the peculiar conditions of Rule
    73(B)[22], and
    reiterates that the objective of the Special Court to promote justice and
    reconciliation in Sierra Leone will not be met if
    the victims are not at the
    heart of the Court’s
    efforts.[23]
  4. It
    also re-emphasises that the difficulties encountered in investigating CDF
    gender-based crimes are greater than for AFRC/RUF crimes
    due to the security
    risks faced by witnesses testifying against CDF members, submitts that the
    specific security risk for CDF witnesses
    was also acknowledged by this Chamber
    in its Decision on Protective
    Measures.[24]
  5. In
    conclusion, the Prosecution reiterates that in May 2003 there were only
    indications of sexual violence, and cites as an example
    of such indications the
    following paragraph from a witness statement of this
    period:

“The only rule was that at 7 a.m. you had to meet them
at the field at Base Zero, but during the night you could do what you
want.
Girls came from surrounding villages into base Zero, plenty of them. This was
the only safe place in Talia. I know there was
plenty of Gonnorea [sic] around
there.”[25]


HAVING DELIBERATED THE CHAMBER DECIDES AS FOLLOWS:

Introduction

  1. This
    is an application by the Office of the Prosecutor seeking leave to file an
    interlocutory appeal.

Order Requested

  1. Specifically,
    the Prosecution seeks leave of the Chamber to file an interlocutory appeal
    against the Chamber’s Decision on the
    Prosecutor’s request for leave
    to amend the indictment against Samuel Hinga Norman, Moinina Fofana and Allieu
    Kondewa.

Legal Basis for the Application

  1. The
    Prosecution’s application is filed pursuant to Rule 73(B) of the Rules.
    According to Rule 73(B):

“Decisions rendered on such motions
are without interlocutory appeal. However, in exceptional circumstances and to
avoid irreparable
prejudice to a party, the Trial Chamber may give leave to
appeal. Such leave should be sought within 3 days of the decision and shall
not
operate as a stay of proceedings unless the Trial Chamber so orders.”

Applicable Jurisprudence

  1. In
    its most recent
    Decision[26] on the
    issue of interlocutory appeals where the Prosecution sought leave of the Trial
    Chamber to appeal interlocutorily against its
    Decision on the Motion for
    Concurrent Hearing of Evidence Common to cases SCSL-2004-15-PT and
    SCSL-2004-16-PT, the Chamber had cause
    to refer to one of its seminal decisions
    on the subject, to wit, the Decision on Prosecutor’s Application for
    Leave to File an Interlocutory Appeal against the Decision on the
    Prosecution’s
    Motion for
    Joinder.
    [27] The
    Chamber noted that the Decision laid down the principles governing applications
    for leave to file interlocutory appeals. In that
    Decision, the Chamber stated
    emphatically that Rule 73(B) generally does not create a right to appeal against
    an interlocutory decision
    but renders it permissible only where leave is granted
    in exceptional circumstances. The Chamber cited with approval two passages
    from
    that Decision as representing the existing law on the subject. The first passage
    reads as follows:

“As a general rule, interlocutory decisions
are not appealable and consistent with a clear and unambiguous legislative
intent,
this rule involves a high threshold that must be met before this Chamber
can exercise its discretion to grant leave to appeal. The
two limbs of the test
are clearly conjunctive and not disjunctive; in other words they must both be
satisfied.”[28]

  1. Suffice
    it to note that the Chamber sees no compelling reason, at this point in time, to
    depart from or modify the foregoing statement
    of the law especially in the
    interest of logical consistency and certainty in its evolving jurisprudence, but
    to determine every
    application for leave on the basis of the law as recently
    expounded, and more importantly, on a case by case basis.
  2. In
    the second passage, the Chamber explained the rationale behind Rule 73(B). The
    Chamber reasoned as follows:

“This interpretation is
unavoidable, given the fact that the second limb of Rule 73(B) was added by the
way of an amendment
adopted at the August 2003 Plenary. This is underscored by
the fact that prior to that amendment no possibility of an interlocutory
appeal
existed and the amendment was carefully couched in such terms so as only to
allow appeals to proceed in very limited and exceptional
situations. In effect,
it is a restrictive provision.”

  1. Indeed,
    in its most recent Decision under
    reference[29], the
    Chamber reinforced the restrictive nature of Rule 73(B) with the terse
    observation that:

“The overriding legal consideration in
respect of an application for leave to file an interlocutory appeal is that the
applicant’s
case must reach a level of exceptional circumstances and
irreparable prejudice. Nothing short of that will suffice having regard
to the
restrictive nature of Rule 73(B) of the Rules and the rationale that criminal
trials must not be heavily encumbered and consequently
unduly delayed by
interlocutory
appeals.”[30]

  1. At
    this point in time, as the trials are progressing, the Chamber must be very
    sensitive, and rightly so, to any proceedings or processes
    that will indeed
    encumber and unduly protract the ongoing trials. For this reason, it is a
    judicial imperative for us to ensure that
    the proceedings before the court are
    conducted expeditiously and to continue to apply the enunciated criteria with
    the same degree
    of stringency as in previous applications for leave to appeal so
    as not to defeat or frustrate the rationale that underlies the amendment
    of Rule
    73(B). We are however not suggesting here that the Chamber will remain
    indifferent to an application where deserving and
    meritorious grounds that meet
    the test laid down in Rule 73(B) have been advanced by the party seeking leave
    to file an interlocutory
    appeal.

Evaluation of the
Application’s Merit

  1. As
    to the merits of the Application the Chamber recalls that the
    Prosecution’s case in support of the “exceptional
    circumstances”
    prong of the test rests, firstly on the belief, as stated
    by the Prosecution,

“that the different opinions expressed by
the majority and dissenting opinion in the Decision, illustrates that the legal
and
factual issues raised by the Request to amend the Indictment are difficult
ones that would benefit from the review of the Appeals
Chamber.”

  1. In
    this regard, it is submitted by the Prosecution that a strong and articulate
    dissenting opinion by a member of the Trial Chamber
    may itself constitute the
    exceptional circumstance warranting the granting of the application. Although
    this proposition sounds interesting
    and novel, the Prosecution has failed to
    elaborate on it thereby leaving the Chamber with no option but to observe that
    such a view
    is neither supported by case-law authority nor is it grounded on any
    legal foundation.
  2. It
    would, in our opinion, be erroneous to hold that every legal situation or
    variable which appears to be novel or unique should,
    for that reason, qualify as
    “exceptional circumstances” within the meaning of Rule 73(B). We
    would only want to observe
    in this regard, that disagreements amongst Judges on
    some of the multi-faceted legal and factual issues which constitute the core
    of
    legal disputes is a normal judicial feature that is inherent in the exercise by
    the Judges of judicial independence on which the
    administration of justice is,
    and will continue to be, based.
  3. The
    second key submission put forward by the Prosecution is that the high profile
    nature of gender based crimes under international
    law constitutes an exceptional
    circumstance given its statutory duty “to prosecute to the full extent
    of the law and to present before the court all relevant evidence reflecting the
    totality of crimes
    committed by the Accused
    ”. In the Chamber’s
    view, the fact that the counts sought to be incorporated in the Indictment by
    the way of the amendment
    are gender based crimes, cannot be the sole determinant
    or overriding variable in working out the “exceptional
    circumstances”
    equation as to whether or not to grant leave to appeal nor
    does the fact of the recognition of a prosecutorial statutory obligation
    to
    prosecute “to the full extent of the law” become the paramount
    consideration in any such equation, given the widespread
    recognition nationally
    and internationally, of the discretionary power enjoyed by the prosecutor not to
    prosecute even where there
    is evidence to justify the institution of criminal
    proceedings that could, under the Agreement and the Statute, possibly be
    included
    in the indictment.
  4. By
    contending that the Office of the Prosecutor is obliged to prosecute “to
    the full extent of the law” is the Prosecution
    implying that it is obliged
    to prosecute all crimes for which there may be supporting evidence? By analogy,
    such an argument loses
    any legal cogency, if any, it may claim when applied to
    the exercise of the broad prosecutorial discretion in determining whether,
    in
    the context of prosecuting “persons who bear the greatest responsibility
    for serious violations of international humanitarian
    law and Sierra Leonean law
    committed in the territory of Sierra Leone since 30 November 1996”, the
    indictments preferred on
    the one hand reflect the totality of all offences and
    on the other hand, all the perpetrators alleged to have committed such grave
    crimes against humanity. It may be pertinent, in this regard, to ask the
    following question: On what grounds or principle, should the prosecutorial
    duty to prosecute to “the full extent of the law” be limited in
    application to the range of alleged criminality involved but not the range of
    the alleged perpetrators?
    In our opinion, the overall interests of justice
    are not served by such limitations or differentiation in the exercise of the
    prosecutorial
    discretion.
  5. Equally
    untenable, in the Chamber’s considered judgement, is the
    Prosecution’s contention that the Court is mandated to
    establish a
    complete and historical record of crimes committed during the armed conflict in
    Sierra Leone. This is a misconception.
    The Chamber’s view is that the
    Court’s role is exclusively adversarial in terms of meting out justice to
    victims and
    persons found guilty of serious violations of humanitarian law and
    Sierra Leone law during the said conflict. The alleged mandate
    which the
    Prosecution attributes to the Court, of providing a complete and historical
    record of what happened in Sierra Leone during
    the said conflict is erroneous as
    it is neither borne out nor is it so stipulated in either the provisions of the
    Agreement setting
    up the Special Court or in its Statute.
  6. Furthermore,
    the Prosecution’s argument that no delay would be occasioned in the
    conduct of the trial if the application were
    granted and the matter heard by the
    Appeals Chamber is highly speculative. Given the limited judicial life span of
    the Court, and
    the proliferation of requests from diverse international bodies
    for weekly summaries of the conduct of the trial so as to evaluate
    the
    court’s commitment to expeditiousness, the Chamber takes the view that it
    is too tenuous a submission to warrant any merit
    in the context of the instant
    application. This Chamber has had the benefit of recent lessons about the
    shortcomings of a reliance
    on the doctrine of rationalisation of factors which
    are likely to delay or not to delay trials as these are not matters that can
    be
    evaluated with any degree of exactitude and certainty.
  7. We
    would like to re-emphasise that the test applicable by this Tribunal in
    considering applications for leave to file interlocutory
    appeals “is more
    restrictive in comparison with that applied by the International Criminal
    Tribunal for Rwanda and the International
    Tribunal for former Yugoslavia and to
    state that in the interests of expeditiousness and the peculiar circumstances of
    this Court’s
    limited
    mandate”[31].
    Based on the foregoing analysis and considerations, this Trial Chamber is not
    persuaded that the Prosecution’s case for leave
    to file an interlocutory
    appeal against the Decision of the Chamber dated 20th
    of May, 2004, refusing leave to amend the Indictment of the CDF group of
    indictees does not rise up to the level of exceptional circumstances
    as required
    by the first prong of the Rule 73(B) test. The claim of “exceptional
    circumstances” by the Prosecution is
    legally unsustainable, and therefore
    fails.

The Element of Estoppel

  1. Even
    though we are not obliged judicially to examine, the alleged “irreparable
    prejudice” submission of the Prosecution
    having found no showing of
    “exceptional circumstances”, as the first prong of the conjunctive
    test, yet we take the liberty
    of observing that it is the Prosecution in this
    application, which is seeking leave to appeal against our majority interlocutory
    Decision, refusing leave to amend the Consolidated Indictment by adding new
    counts to it. For it to succeed, the Prosecution, as
    we have said, must satisfy
    us, as stipulated in the provisions of Rule 73(B) of the Rules, that exceptional
    circumstances exist for
    making such an application and that if it were not
    granted, it would suffer an irreparable prejudice.
  2. For the Prosecution to be successful in establishing the conjunctive elements of
    exceptional circumstances and irreparable prejudice,
    it must, in our opinion,
    demonstrate that its conduct did not contribute to occasioning or causing the
    irreparable prejudice, if
    any, which forms the basis of the instant application
    for leave to appeal.
  3. In
    this regard, it is our conviction and finding, that the Prosecution, because of
    its neglect in respecting the statutory obligation
    of timeliness, both in
    instituting criminal proceedings or seeking leave for an amendment to the
    indictment at the appropriate time,
    particularly in the peculiar circumstances
    of the limited mandate of the Special Court, was solely responsible for the
    refusal by
    the majority decision of the Chamber, of the Application for leave to
    amend the indictment.
  4. Indeed,
    our analyses in our majority judgement of the 29th of
    May, 2004, as illustrated by the following excerpts clearly demonstrate the
    aforementioned lapses on the part of the
    prosecution.

“...These provisions underscore the necessity for
international criminal justice to highlight the high profile nature of the
emerging circus of gender offences with a view to bringing the alleged
perpetrators to justice. In the light of the above, it is
expected, and we hold
the view, that the Prosecutor who is at the helm of the investigation process,
should exercise extraordinary
vigilance, diligence and attention, so as to
immediately and without any “undue delay”, as stipulated by Article
17(4)(c)
of the Statute of the Court, bring before justice for trial, all those
suspected of having committed gender offences and other categories
of offences
within his
competence...”[32]

“...If the purpose of the amendment sought, as the Prosecution alleges,
is to prosecute those offences whose facts “have
just recently come to its
knowledge” the question the Chamber would like to be addressed is whether
a recourse to an amendment
to add fresh and new charges as it is in this case,
would have been necessary if the Prosecution, during and after more than 2 years
of investigations, had exercised due diligence to uncover long before now, these
offences which we would imagine, should have been
included, not only in the
original individual indictments, but also in the 3 consolidated indictment that
the Prosecution filed with
our leave and following our Ruling and Order dated
27th January,
2004...”[33]

“...The Prosecution, in one breath, attributes this delay to the time
it required to evaluate and confirm evidence and the need
to secure the
cooperation of witnesses who were going to testify to these allegations, before
the amendment could be filed. In yet
another breath, the Prosecution admits
withholding the application to amend because it was waiting for the outcome of
the joinder
motions and to file for the amendment after the decision on the
joinder...”[34]

“...We find this position unacceptable and untenable. Even if it were,
shall the Accused have to wait indefinitely and for as
long as the Prosecution
is engaged in this protractedly indefinite expedition whose results may either
be uncertain or not forthcoming
at all? And if so, for how long will the Accused
have to
wait...?”[35]

“...In this case, it has taken the prosecution over 2 years to detect
gender offences against the accused persons and in fact,
one year after their
initial appearances when the accused would have, if the prosecution were
reasonably diligent, been informed
promptly and in detail, of “the nature
and cause of the charge against them”. We observe therefore that the
prosecution
was in breach of the ingredient of timeliness as
statutorily required by the Statute and so would any order emanating from us
granting this motion to amend their
indictment...”[36]

“...These included more importantly, those filed by the Prosecution
which, with a view to easing and fast tracking the process,
were filed just when
status conferences were supposed to commence, for a consolidation of the 9
individual indictments to 2 only
and a joinder of the accused persons into 2
groups namely, the RUF and the AFRC group on the one hand, and the CDF group on
the other.
This we granted in the manner that appeared to us to be more in
conformity with legal realities and the protection of the rights
of the accused.
It is again the Prosecution that has filed yet another motion to amend the
indictment, an application which, if granted,
will in our opinion, put the trial
on hold, to the detriment of the Article 17 rights guaranteed to the accused by
the
Statute...”[37]

“...There must, at a certain stage, as we traditionally are compelled
to observe, be an end to litigation which, as we know,
is often engendered, at
times on purpose, by a multiplicity of judicial processes. In this regard, we
are of the opinion that exercising
our discretion at this stage and in these
circumstances in favor of granting the amendment sought by the Prosecution after
obvious
prosecutorial lapses that cannot be redeemed without violating the
statutory rights of the accused, would not only manifestly amount
to an abuse of
the exercise of this inherent judicial power conferred on us, but would also be
tantamount to an abuse of
process...”[38]

  1. In
    these circumstances, therefore, the Prosecution is now estopped from raising the
    issue of irreparable prejudice as this was occasioned
    the lack of diligence and
    promptitude on its part in carrying out investigations for the gender crimes,
    which it rather belatedly
    wanted to incorporate into the consolidated
    indictment, coupled with the lack of respect for the principle of timeliness in
    seeking
    the amendment for a trial whose commencement was very imminent and which
    actually started on the 3 June 2004, after we rendered our
    decision which the
    Prosecution is contesting, on the 29 May
    2004.

RULING

  1. In
    the light of the foregoing analysis and considerations, the Trial Chamber hereby
    dismisses the Application for want of merit.
Done at Freetown this 2nd day of August,
2004


Hon. Judge Benjamin Mutanga Itoe
Presiding Judge,
Trial Chamber

Hon. Judge Bankole Thompson




[Seal of the Special Court for Sierra Leone]


Hon. Judge Pierre Boutet is appending a dissenting opinion to this
Decision.


[1] Joint Response of
Second and Third Accused to Prosecution’s Application for Leave to Appeal
against the Decision on Request
for Leave to Amend the
Indictment.
[2]
Prosecution Reply to Defence Joint Response to Prosecution’s Application
for Leave to File an Interlocutory Appeal against
the Decision on Request for
Leave to Amend the
Indictment.
[3]
Motion, para. 4.
[4]
Id., para.
5
[5] Id.,
para. 6.
[6]
Id., para.
7.
[7] Id.,
para. 8.
[8]
Id., para.
9.
[9] Id.,
para 10.
[10] At
the time of the filing of the motion this meant February
2002.
[11]
Id., para.
2
[12] Id.,
para. 18.
[13]
Response, para.
8.
[14] Id.,
para. 10.
[15]
Id., para.
13.
[16] Id., para.
15.
[17]
Id., para.
25.
[18]
Id., para.
27.
[19] Reply,
para. 3.
[20]
Prosecutor v Mladen Naletilic and Vinko Martinovic; IT-98-34-PT, Decision
on Vinko Martinovic’s Objection to the Amended Indictment and Mladen
Naletilic’s Preliminary Motion
to the Amended Indictment;
Prosecutor
v Alfred Musema, ICTR-96-13-T, Decision on the
Prosecutor’s Request for Leave to Amend the Indictment, para.
17.
[21] Reply,
para. 4.
[22]
Id, para.
5.
[23] Id.,
para. 6
[24]
Id., para. 10.

[25] Id.,
para. 11.
[26]
Decision on Prosecution Application For Leave to file An Interlocutory Appeal
against Decision on Motion for Concurrent Hearing of
Evidence Common to Cases
SCSL-2004-15-PT and SCSL-2004-16-PT, 1 June
2004.
[27] 13
February 2004 (“Decision of 13 February
2004”).
[28]
Id. para.
10.
[29] Decision
on Prosecution Application for Leave to file an interlocutory appeal against
Decision on Motion for Concurrent Hearing of
Evidence Common to Cases
SCSL-2004-15-PT and SCSL-2004-16-PT, 1 June 2004 (“Decision on Concurrent
Hearing of
Evidence”)
[30]
Id., para.
21.
[31] Decision
on Concurrent Hearing of Evidence, supra note 29, para.
22.
[32]
Id., para.
42.
[33]
Id., para.
43.
[34]
Id., para.
47.
[35]
Id., para.
48.
[36] Id.,
para. 64.
[37]
Id., para.
76.
[38]
Id., para. 77.